On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2422-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Plaintiff Kari White, a former district manager for defendant Starbucks Corporation, appeals from the judgment of the Law Division granting defendant's motion for summary judgment and dismissing her complaint brought under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. The trial court found plaintiff failed to establish she engaged in whistle-blowing activity. We affirm.
Because the court dismissed plaintiff's complaint as a matter of law, we will review the facts developed before the motion judge in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences derived therefrom.
R. 4:46-2. See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
On May 19, 2006, plaintiff formally accepted defendant's offer of employment as district manager in the Upper Mid-Atlantic Region. According to the job description for this position, plaintiff was required to regularly and customarily exercise discretion in managing the overall operation of the stores within [her] district[,] . . . [including] overseeing the district's store management workforce, making management staffing decisions, ensuring district-wide customer satisfaction and product quality, . . . and managing safety and security within the district.
She was also responsible for "ensur[ing] . . . [that employees] adhere to legal and operational compliance requirements." Plaintiff reported to defendant Jeffrey Peters, who was at the time Starbucks' Regional Director of Operations for the central and northern sections of New Jersey.
On July 10, 2006, plaintiff began training with Michael Lawniczak, a district coach manager. The training topics included customer care, communication, managing food and financial performance, store development, and delegation. Plaintiff was also trained in retail management and compliance with public health laws. She received and reviewed a manual titled "Starbucks Food Safety, Store Cleanliness and Store Condition Standards," which included a section on refrigeration and cold storage. That section instructed staff to replace "inaccurate or broken thermometers as needed."
Toward the end of her six-week training period, plaintiff noticed that, in the Hoboken store where she had been training, certain merchandise from "the four retail cabinets along the wall were missing merchandise," including coffee mugs and accessories, and that "the cabinets that were full were now about [eighty] percent empty." Although, as a trainee, she was not required to take any action, she informed the Hoboken store manager, Tim Ilch, who in turn suggested that plaintiff double-check to confirm that the items were in fact missing. Plaintiff "shared . . . her . . . experience" regarding the missing merchandise with Marilyn Gaudioso, the district sales manager, Peters, and Lawniczak. According to plaintiff, Gaudioso "appreciated" that she told her about the missing merchandise, and said "that she would work with Tim . . . in resolving it."
At the end of September 2006, plaintiff met with Peters, as she usually did every two months, to discuss what had transpired during the month or the quarter, including matters involving employees, the stores, and even her career aspirations. At this particular meeting, plaintiff "reviewed" with Peters the problem with the missing merchandise at the Hoboken store. According to plaintiff, Peters seemed satisfied to learn that she reported the problem to Gaudioso.
In the beginning of October 2006, plaintiff met with Peters, Lawniczak, and others in management to review and recap her training. Plaintiff discussed at this meeting the positive experiences she had during training. She also told those present that she had witnessed a theft of merchandise at the Hoboken store.
Activities as District Manager
On October 8, 2006, plaintiff went "live," meaning that she formally assumed her management role in the six stores in her district.*fn1 The managers of those stores reported directly to plaintiff. Toward the end of October or the beginning of November 2006, plaintiff became aware that the Woodbridge store did not have thermometers in the refrigerated food and beverage cases to ensure that their contents were kept at a safe temperature prior to sale. According to plaintiff, it was her responsibility to ensure that the stores had all the right tools and resources to operate effectively. She thus asked the Woodbridge store manager, Steve Szabo, and a shift supervisor, Curt, to order thermometers "as soon as possible." The thermometers were thereafter ordered and installed. She also informed Peters that the Woodbridge store was missing thermometers.
Also around the end of October or the beginning of November 2006, during her initial visit to the Newark store with Amy Vetter, the store manager, and Iona Flowers, the shift supervisor, plaintiff noticed that the refrigerated food and beverage cases were missing thermometers. According to plaintiff, instead of imposing some kind of disciplinary sanction, she decided to use the situation as an opportunity to train Vetter and Flowers by asking them to order replacement thermometers while using the daily routine book to ensure that the refrigerated food and beverage cases were kept at a proper temperature. Plaintiff also reviewed the situation with Vetter and Flowers afterwards to ascertain what they had learned from their conversation.
The thermometers were delivered and installed at the Newark store a few weeks later. Because they were not functioning properly, however, plaintiff "asked . . . [Vetter and Flowers] to contact the operations team and have someone come out to fix the equipment as soon as possible." The repairs were not successfully made the first time, so she "asked . . . [Vetter] to call the operations team and tell them that they may have to come out to fix it. . . ." The repairs were successfully completed around the end of November. At that time, the cases were at the correct temperature level.
During her visits to the Newark store, plaintiff had also observed unsanitary conditions such as: (1) "a water sink that had mold around it"; (2) a water filter with "cobwebs on it"; and (3) "filthy dirty" pastry knives. Plaintiff addressed these issues with the store's management team, and the problems were substantially corrected by the beginning of December 2006.
Plaintiff informed Peters that Vetter and Flowers were not using the daily routine book, and that Vetter specifically was resistant to Starbucks's procedures. Peters suggested that plaintiff should first discuss the issue with them in lieu of taking formal corrective action. Consequently, plaintiff met with Vetter to "ensure that she was following the company guidelines." According to plaintiff, Vetter told her "that she didn't appreciate the conversation, that she felt like . . . [plaintiff] was nitpicking her store."
During November or December 2006 in a "peer District Manager meeting," in which managers discuss the things they had found on their visits to the stores within their district, plaintiff spoke generally about violations of Starbucks's policy and procedure she observed at the Woodbridge and Newark stores. ...